UNITED STATES v. PETERMANN (2019)

[Unpublished]

Bradley Petermann pleaded guilty to one count of unlawful possession of a firearm as a prohibited person, namely, a previously convicted felon and an unlawful user of a controlled substance. See 18 U.S.C. §§ 922(g)(1), 922(g)(3), 924(a)(2). The district court ¹ calculated an advisory guideline range of 70 to 87 months’ imprisonment, and ultimately imposed a term of 37 months’ imprisonment after a departure under the guidelines and a variance under 18 U.S.C. § 3553(a). Petermann appeals his sentence, arguing that the district court committed procedural error in applying a four-level increase under the guidelines for possessing a firearm in connection with another felony offense. We conclude that there was no error and therefore affirm.

In calculating Petermann’s advisory guideline range, the district court applied a four-level increase under USSG § 2K2.1(b)(6)(B) on the ground that Petermann “possessed any firearm ․ in connection with another felony offense.” The other felony offense was “carrying weapons” in violation of Iowa Code § 724.4. That provision proscribes going armed with a dangerous weapon concealed on or about the person, going armed with a pistol or revolver or any loaded firearm, whether concealed or not, within the limits of any city, and knowingly carrying or transporting a pistol or revolver in a vehicle. The offense is punishable by up to two years’ imprisonment, see Iowa Code § 903.1(2), and thus qualifies as a felony within the meaning of the guideline. USSG § 2K2.1, comment. (n.1). Because police found a loaded nine-millimeter firearm on the driver’s side floorboard of a vehicle that Petermann was driving when stopped for speeding in Council Bluffs, Iowa, the court found that he had possessed the firearm in connection with a violation of Iowa Code § 724.4.

Petermann conceded in the district court and acknowledges on appeal that the four-level increase was proper under this court’s decision in United States v. Walker, 771 F.3d 449 (8th Cir. 2014), although he contends that Walker was wrongly decided. We agree with the district court that Walker is directly on point, and that § 2K2.1(b)(6)(B) is therefore applicable. There was no error in calculating the advisory guideline range, and the judgment is affirmed.

FOOTNOTES

1.   The Honorable Stephanie M. Rose, United States District Judge for the Southern District of Iowa.

PER CURIAM.